Many conservatives have taken up the cause of Frank Ricci, a New Haven, Conn., firefighter who sued the city, claiming that officials discriminated against him when they rejected the results of a promotion exam, on which he did well, because all but one of the top scoring candidates were white. Ricci's claim is now before the Supreme Court. I've written about it once to explain why Ricci's argument is a threat to an important part of modern civil rights law, and I'm writing again now because a lot of people have suggested that Ricci has been treated unusually and unfairly in the courts. In fact, he's been treated just like any other plaintiff suing for employment discrimination. The anger and frustration of the top-scoring firefighters who expected promotions is understandable. But the outrage on the right is also ironic, because the reason that people who sue for employment discrimination—like Frank Ricci—rarely win their cases is that conservative judges have spent decades making sure they usually lose.
A reverse-discrimination lawsuit like Ricci's is, legally speaking, no different from a conventional discrimination lawsuit. The plaintiff bears the burden of proof on every factual issue. This was firmly established by Justice Antonin Scalia's 1993 majority opinion in a case called St. Mary's Honor Center v. Hicks, in which a black correctional officer, Melvin Hicks, sued for race discrimination after he was demoted and later fired from his job at a halfway house. The plaintiff must first establish some basic evidence that makes it plausible that he was a victim of discrimination—he was fired or turned down for promotion, for example, for reasons that weren't obviously due to his own lack of performance or across-the-board staff reductions. Once a plaintiff makes this showing (as Ricci did), then the typical case proceeds by a process of elimination. If the plaintiff can prove that there was no good reason for his firing or nonpromotion, the law will conclude that the decision must have been discriminatory.
But, as Justice Scalia made clear in Hicks, the employer doesn't have to prove that there was a good reason for its decision; it needs only to claim that there was one.
Oh good Lord. What part of "The plaintiff bears the burden of proof on every factual issue" does this author (Stanford Law School prof Richard Ford) not understand? Look, we are dealing with individuals who have been accused of breaking the law. Since when have we thought it was OK to presume guilt? This is exactly what Ford is advocating, and acting as if the Conservatives are off their rocker for upholding the concept of innocent until proven guilty.
Additionally, Ford seems to indicate that as soon as some employer puts forward any reason whatsoever the plaintiffs case is automatically dismissed. This is complete nonsense. All the Court has said is that the original task of a plaintiff (i.e. proving they were discriminated against unlawfully) does not cease and cannot be replaced by the lesser task of poking holes in the defence.
It is worrying that someone teaching at a law school could so blithely embrace the concept of having people prove they are innocent, and thus negate a basic protection of the law. It's even scarier that Prof. Ford doesn't seem to realize he's doing this.
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